FCC and Obscenity Ruling: Seven Dirty Words a Thing of the Past

The FCC's policy on indecency was struck down on July 13, 2010 by the Second Circuit Court of Appeals decision in Fox Television Stations, Inc. v. FCC. In its ruling, the Court holds that the FCC's obscenity policy is unconstitutionally vague and creates "a chilling effect" on the exercise of free speech. In its analysis the Court recognized the changing landscape of entertainment, including the proliferation of cable television and technology such as the V-chip that allows parents to block programming based on a standardized rating system.

The FCC had found four programs including episodes of ABC's NYPD Blue and CBS's The Early Show, as well as the 2002 and 2003 Billboard Music Awards, indecent and profane under the criteria known as the "Golden Globes" standard. Under the so-called Golden Globes standard, the FCC determined that even the single use of an expletive such as the f-word could be profane and blasphemous.

The Court disagreed with the FCC, stating that the episodes at issue involved what it characterized as "fleeting expletives." The Court cited specific examples from the programs, including Cher's use of the phrase "f--k 'em" at the 2002 Billboard Music Awards, Nicole Ritchie's remark at the 2003 Billboard Music Awards about getting "cow s--t" out of a Prada purse, and the use of the word "bulls--ter" on the CBS's Early show by a Survivor Vanuatu contestant.

The Court held that the FCC's indecency policy is impermissibly vague, due in part to the FCC's determination concerning which words or expressions are patently offensive. Because the FCC itself cannot say what words it finds indecent, the Court reasoned that the networks cannot comply with the unduly vague policy. The FCC's fines and enforcement lead to a chilling effect on speech and an unwillingness to air live programs or host controversial guests since their expletives may result in fines.

The Court struck down the existing FCC indecency policy, but suggested that the FCC could establish a constitutional policy that met the Court's guidelines.

Sources:

Fox Television Stations, Inc. v. FCC (2^nd Cir. 2010), Docket Nos. 06-1760-ag, 06-2750-ag, 06-5358-ag.